Thursday, July 31, 2008

Deduct Benefit of Product from Damages to Avoid Unjust Enrichment

The verdict is deeply embarrassing to the civil justice system. It has no scientific validity, nor any logic, just based on the facts in the article.

But let’s assume, the verdict is absolutely correct, and we are in the damages phase.

The plaintiff lost a specific amount gambling. 1) Should any gambling winnings go to the defendant?; 2) Should the value of the benefit of the medication be deducted, and reimbursed to the defendant if exceeding the value of the lost? He had Parkinson’s disease. Say, it was bad enough to retire him. The medicine improved him, and allowed him to earn again, to enjoy activities, to have sex, to avoid placement in a nursing home, to go out as a tourist, to run about with family members, to be funny, to sleep better. Those benefits have value.

If the plaintiff gets to collect for his loss, but does not re-imburse the defendant for the benefit, the plaintiff has been unjustly enriched.

The damage phase should also discount for discovered factors not caused by the defendant, 1) the opening of a casino quadruples the pathological gambling rate within 50 miles; 2) the plaintiff had a pre-existing condition that increased the risk (true here); 3) the casinos violated any policy or regulation designed to exclude pathological gamblers (warrants a per se cross claim); 4) the plaintiff had fun gambling, a benefit, not a damage.

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